Coming Out Week is here and for thousands of people across the country, this is a week of celebration and visibility of the LGBTQ community.
But for some students on college campuses, coming out can be dangerous—resulting in discrimination, harassment, or even expulsion.
Unfortunately, laws protecting LGBTQ students from discrimination are under attack. According a new brief released today by MAP and the National Center for Transgender Equality, Title IX, Religious Exemptions and Campus Climate: LGBT Protections in Higher Education, the expansion of the ability of colleges and universities to claim a religious exemption to federal nondiscrimination laws can have a profoundly negative impact on LGBTQ students. These risks include threats of expulsion, increased disciplinary action simply for being LGBT, being denied participation in extracurricular activities, or forced into conversion therapy or counseling.
What is Title IX?
Title IX of the Education Amendments of 1972 is a federal law that prohibits discrimination on the basis of sex in federally-funded educational institutions, including colleges and universities. For years, Title IX protections have been a critical protection for LGBTQ students—and not just for K-12 students.
In 2014, the Obama administration issued official guidance clarifying that transgender students are protected from discrimination based on Title IX’s prohibition on sex discrimination. However, in 2017, the Trump administration rescinded that guidance. In February of this year, the U.S. Department of Education’s Office of Civil Rights announced that they will no longer be investigating complaints of discrimination filed by transgender students.
What’s worse, according a recent leaked draft of new proposed rules from the Department of Education, the Department is exploring expanding the ability of schools to claim religious exemptions, and allowing schools to claim such an exemption without even notifying the Department of Education. This means schools basically have a de facto exemption from Title IX.
Importantly, federal Title IX continues to prohibit discrimination based on sex, and many courts have held explicitly includes discrimination based on gender identity and/or sexual orientation.
What does this mean for LGBTQ students?
Many campuses provide a welcoming and supportive campus climate for LGBTQ students including nondiscrimination policies that include sexual orientation and gender identity; provide facilities access and equal housing for LGBTQ students; establish preferred name policies; and support and prioritize the needs of LGBTQ student-led organizations, including those measured by The Campus Pride Index. However, there are an increasing number of campuses that are seeking religious exemptions to following even the basic nondiscrimination requirements of Title IX. Because of the reduced oversight from the federal government guided by actions from the Trump administration, it is likely more universities will request religious exemptions with regard to LGBTQ students, allowing them to discriminate against students on their campuses.
Is there any recourse?
Yes! As the brief points out, federal courts have determined that federal sex discrimination laws, including Title IX, prohibit discrimination on the basis of gender identity and/or sexual orientation.
Just like in K-12 schools, universities have a responsibility to ensure a safe campus environment for all students and to follow federal law. It is crucial to foster inclusion on campus so that LGBTQ students have the same chance as other students to pursue an education and be prepared to support themselves.